Courts still rejecting unsworn affidavits despite rule changes and a 3-year-old state law saying notaries aren't required anymore
By Simon Crittle
Changes to Colorado court rules about accepting unsworn affidavits are being met with confusion as some courts are still rejecting affidavits that haven’t been notarized despite a state statute saying they don’t have to be.
In May, the Colorado court system began complying with a 3-year-old statute, the 2017 Uniform Unsworn Declarations Act, which says an “unsworn declaration in a court proceeding . . . has the same effect as a sworn declaration.”
However, the Process Servers Association of Colorado (PSAC) says some courts, particularly in Arapahoe and Adams counties, continue to reject affidavits which haven’t been notarized, slowing down court proceedings, creating headaches for attorneys and their clients.
Ross Investigators has seen documents which corroborate the PSAC’s claims that Arapahoe and Adams county courts were rejecting unsworn affidavits as recently as last month.
“It is inconvenient to have an affidavit notarized,” says PSAC president, Steven Glenn. “Maybe not here in Denver but for people who are in rural parts of the state and might have to drive 50 miles to get something notarized, it’s inconvenient.”
Glenn added that a notary was merely attesting to the fact a document was signed by a particular person in their presence, when they notarized a document, and not that the document was accurate or truthful.
“The notary isn’t attesting to the information in the document because they don’t even read it.”
The Colorado Supreme Court was first petitioned about court non-compliance with state law on unsworn affidavits last year. The court’s Rules Committee subsequently discussed the matter during its June, 2019, meeting and changed rules C.R.C.P. 4 and C.C.C.R.P. 304 regarding returns of affidavits. The rules apply to all state-administered courts.
Rob McCallum, Colorado Judicial Department spokesman, told Ross Investigators: “We had, before the Supreme Court amended the civil rules to clarify on this issue, advised to not accept anything but notarized returns of service. We reversed that with the Supreme Court rule change on May 17, 2020.”
Adding to the confusion, the COVID-19 pandemic prompted the Supreme Court to send a letter to all Colorado attorneys on April 17 saying affidavits no longer had to be notarized to “avoid unnecessary in-person contact.”
It is unclear if some courts will continue rejecting, or resume rejecting unsworn affidavits when social distancing measures are lifted and Colorado courts, which currently aren’t hearing cases, return to normal business.
Ross Investigators has asked the Colorado Judicial Department why some judges still aren’t following court rules, and, why it took three years for the court system to comply with state law. At the time of publication, the department had not responded.
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